[Cite as Meredith v. Alliance Castings Co., L.L.C., 2021-Ohio-2565.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBBIE MEREDITH : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ALLIANCE CASTINGS :
COMPANY, LLC, ET AL. : Case No. 2020 CA 00143
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2019 CV 00570
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 27, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
JOSEPH L. SCHIAVONI EDWARD D. MURRAY
87 Westchester Drive JAMES M. WILLIAMS
Youngstown, OH 44515 ZACHARY M. SOEHNLEN
4775 Munson Street, NW
P.O. Box 36963
Canton, OH 43735-6963
THOMAS M. MCCARTY
State Office Building, 11th Floor
615 Superior Avenue
Cleveland, OH 44113
Stark County, Case No. 2020 CA 00143 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Robbie Meredith, appeals the September 1, 2020
judgment entry of the Court of Common Pleas of Stark County, Ohio, granting motions
for judgment notwithstanding the verdict filed by Defendants-Appellees, Alliance Castings
Company, LLC and Administrator, Bureau of Workers’ Compensation.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On June 8, 2012, appellant was working for Alliance Castings Company
LLC when she sustained an injury in the course of her employment. Appellant filed a
workers' compensation claim which was allowed for sprain neck, sprain thoracic region,
sprain lumbar region, focal disc herniation into neural foraminal right T7-T8, substantial
aggravation of pre-existing moderate neuroforaminal narrowing right T7-T8, disc
herniation at L4-L5, and radiculopathy at L4-L5.
{¶ 3} In 2018, appellant filed a claim for the additional allowance of substantial
aggravation of pre-existing major depressive disorder, single episode, moderate course,
comorbid with anxiety features. The claim was denied at the administrative level.
{¶ 4} On March 4, 2019, appellant filed an appeal with the Court of Common
Pleas. A jury trial commenced on February 11, 2020. The jury found appellant was
entitled to participate in the workers’ compensation fund for the aforementioned condition.
{¶ 5} On March 17, 2020, appellees filed motions for judgment notwithstanding
the verdict, arguing insufficient evidence to establish a pre-existing condition and
therefore there was no condition from which to be substantially aggravated in the first
instance. Further, appellees argued there was no evidence of objective diagnostic
findings, objective clinical findings, or objective test results to demonstrate that the
Stark County, Case No. 2020 CA 00143 3
claimed pre-existing condition was substantially aggravated. By judgment entry filed
September 1, 2020, the trial court agreed and granted the motions.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ERRED IN REVERSING THE VERDICT/FINAL
DECISION OF THE TRIAL JURY WHICH DETERMINED THAT THE PLAINTIFF-
APPELLANT WAS ALLOWED TO PARTICIPATE IN THE WORKERS’
COMPENSATION ACT FOR THE CONDITION OF SUBSTANTIAL AGGRAVATION OF
PRE-EXISTING MAJOR DEPRESSIVE DISORDER, SINGLE EPISODE, MODERATE
COURSE, COMORBID WITH ANXIETY FEATURES."
I
{¶ 8} In her sole assignment of error, appellant claims the trial court erred in
granting appellees’ motions for judgment notwithstanding the verdict. We disagree.
{¶ 9} Civil Rule 50(B) governs motions for judgment notwithstanding the verdict
("JNOV"). In Pariseau v. Wedge Products, Inc., 36 Ohio St.3d 124, 127, 522 N.E.2d 511
(1988), the Supreme Court of Ohio discussed the standard of review on a motion for
JNOV as follows:
"The test to be applied by a trial court in ruling on a motion for
judgment notwithstanding the verdict is the same test to be applied on a
motion for a directed verdict. The evidence adduced at trial and the facts
established by admissions in the pleadings and in the record must be
construed most strongly in favor of the party against whom the motion is
Stark County, Case No. 2020 CA 00143 4
made, and, where there is substantial evidence to support his side of the
case, upon which reasonable minds may reach different conclusions, the
motion must be denied. Neither the weight of the evidence nor the
credibility of the witnesses is for the court's determination in ruling upon
either of the above motions." Posin v. A.B.C. Motor Court Hotel (1976), 46
Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338. (Additional
citations omitted.)
{¶ 10} Appellate review of a ruling on a motion for JNOV is de novo. Midwest
Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist. Stark No. 2006CA00048,
2006-Ohio-6232.
{¶ 11} In order to participate in the workers' compensation fund, a claimant must
show, "by a preponderance of the evidence, medical or otherwise, not only that his injury
arose out of and in the course of his employment, but also that a direct or proximate
causal relationship existed between his injury and his harm or disability." White Motor
Corp. v. Moore, 48 Ohio St.2d 156, 357 N.E.2d 1069 (1976), paragraph one of the
syllabus. Pursuant to R.C. 4123.01(C)(1) and (4), an "injury" does not include:
(1) Psychiatric conditions except where the claimant's psychiatric
conditions have arisen from an injury or occupational disease sustained by
that claimant or where the claimant's psychiatric conditions have arisen
from sexual conduct in which the claimant was forced by threat of physical
harm to engage or participate;
Stark County, Case No. 2020 CA 00143 5
(4) A condition that pre-existed an injury unless that pre-existing
condition is substantially aggravated by the injury. Such a substantial
aggravation must be documented by objective diagnostic findings, objective
clinical findings, or objective test results. Subjective complaints may be
evidence of such a substantial aggravation. However, subjective
complaints without objective diagnostic findings, objective clinical findings,
or objective test results are insufficient to substantiate a substantial
aggravation.
{¶ 12} In order to establish substantial aggravation, there first must be evidence of
a pre-existing condition.
{¶ 13} In its September 1, 2020 judgment entry granting the motions for JNOV, the
trial court found "insufficient evidence from which a reasonable person could conclude
that Plaintiff had the particular condition being sought," and could not find "any objective
diagnostic findings, objective clinical findings, or objective test results that Plaintiff
suffered a substantial aggravation" of the claimed condition.
{¶ 14} In her appellate brief at 6, appellant argues the jury based its verdict in her
favor on her own testimony, the written and video testimony of her medical expert, Lynn
Ross DiMarzio, Ph.D., the report of Dr. Joseph Konieczny who evaluated her for social
security disability, and the testimony of her daughter.
{¶ 15} Unfortunately, a transcript of the jury trial is not included in the record. In
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980), the
Supreme Court of Ohio held the following:
Stark County, Case No. 2020 CA 00143 6
The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of
showing error by reference to matters in the record. See State v. Skaggs,
53 Ohio St.2d 162 (1978). This principle is recognized in App.R. 9(B), which
provides, in part, that " * * * the appellant shall in writing order from the
reporter a complete transcript or a transcript of such parts of the
proceedings not already on file as he deems necessary for inclusion in the
record. * * *." When portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has nothing
to pass upon and thus, as to those assigned errors, the court has no choice
but to presume the validity of the lower court's proceedings, and affirm.
(Footnote omitted.)
{¶ 16} In order to review appellant's claimed assignment of error, that the trial court
erred in granting the motions for JNOV, we must determine if the trial court erred in finding
insufficient evidence to support the jury's verdict. Without a transcript, we have nothing
to pass upon and this court has no choice but to presume the validity of the trial court's
proceedings.
{¶ 17} Even accepting all of the claimed testimony set forth in appellant's appellate
brief as true, we cannot find the trial court erred in granting the motions for JNOV.
Appellant's medical expert, Dr. DiMarzio, testified via video deposition. A written copy of
the deposition is attached to appellant's appellate brief. All parties refer to this deposition.
Dr. DiMarzio saw appellant one time, in 2018, six years after her workplace injury, and
never treated her. DiMarzio depo. at 29, 34-35. She opined appellant had a "depressive
Stark County, Case No. 2020 CA 00143 7
disorder" in 2004, eight years prior to her workplace back injury. Id. at 17. In 2004,
appellant's son had attempted suicide. Dr. DiMarzio based her opinion of depressive
disorder in 2004 on the one 2018 visit, citing appellant's demeanor, how she was talking,
crying, and "didn't want to talk about it." Id. at 16-17. Dr. DiMarzio never diagnosed
appellant with having major depressive disorder, single episode, moderate course,
comorbid with anxiety features in 2004. On the issue of substantial aggravation, when
asked what objective finding she used to compare to, Dr. DiMarzio testified the "most
objective finding was the fact that she was prescribed psychiatric medication,
psychotropic medication" (Zoloft) back in 2004. Id. at 24. On cross-examination, Dr.
DiMarzio agreed the prescription was not based on any long-standing treatment with a
mental health professional, appellant could not recall the name of the prescribing doctor,
she took it for less than thirty days, and it was possible appellant was never prescribed
Zoloft, as she was taking appellant's word for it because there was no physical
documentary evidence that she took anything. Id. at 38.
{¶ 18} Based upon the state of the record and our limited review, we find the trial
court did not err in granting the motions for JNOV.
{¶ 19} The sole assignment of error is denied.
Stark County, Case No. 2020 CA 00143 8
{¶ 20} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Delaney, J. concur.
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